Need help with Motion to Dismiss and Counterclaim

[littlered_893]

I was recently pursued for an old debt. The information they provided in the summons was very minimum. All they provided was an Affidavit and an old statement. They did not even have the account numbers correct in the Affidavit.
I responded with denials and affirmative defenses, which included the following:

1. Statute of Frauds - There is no valid or enforceable contract.
2. Uniform Commercial Code- Article 3 applies to restrictive endorsements and negotiable instruments.
3. Fair Debt Collection Practices Act (FDCPA) - Plaintiff's attorney failed to validate a purported debt.
4. Plaintiff has failed to state a valid claim for attorney fees, and is barred from collecting attorney fees under FDCPA.

I just received a Motion to Dismiss and Reply to Counterclaim. I have no idea what to do with it.
To summarize, the state to the extent that the Court considers this allegation, denominated as an affirmative defense, sufficient to form the basis of a counterclaim against Plaintiff for violation of the Fair Debt Collection Practices Act, the plaintiff responds to the specific allegation of said counterclaim as follows:

1. Plaintiff realleges and incorporates by reference the allegations set forth in the Complaint filed.
2. The allegations of Defendant's Answer are DENIED. Plaintiff has provided the Defendant with verification
   of the debt in compliance with the FDCPA.

Then there is a Motion to Dismiss. Plaintiff moves to the Court to dismiss the claim of the Plaintiff (I think this should be Defendant) filed herein pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. In support thereof, Plaintiff shows unto the Court as follows:

1. Defendant failed to allege any injury or request any damages.
2. Defendant failed to provide a statement intended to be proved showing that the pleader is entitled to relief as required by Rule 8 of the North Carolina Rules of Civil Procedure.
3. Defendant has failed to sufficiently allege the elements of a violation and therefore failed
   to state a claim upon relief could be granted.

Wherefore, the Plaintiff requests that:
The Defendant have and recover nothing of the Plaintiff and that the Counterclaim be dismissed with Prejudice.

1. Plaintiff have and recover the relief set forth in the Complaint filed.
2. Plaintiff be awarded its reasonable attorney's fees pursuant to G.S. 6-21.1 et seq.

I am confused on this and do not know what to do. I do not have a counterclaim and think they are trying to bully me. Are they just trying to dismiss that specific affirmative defense to prevent a future lawsuit I would file against them?

Any advice on how to handle this is greatly appreciated!

 

[army judge]

You should have ignored their original demand for tribute.

These bums are debt pirates.

You betcha, they're bullies.

Now that you've pulled the tiger's tail, he's angry.

You answered your own question by your last question in your post.

That is precisely what they're trying to avoid.

How much are they alleging you owe?

Has the SOL on the debt expired?

Is this an unsecured debt?

When was the last time you paid on this debt?

Have you agreed to any settlement offer from these debt collection pirates?

 

[littlered_893]

The last time I paid on account was 7/10, so SOL not expired. The debt is unsecured with Bank of America, but FIA filed against me thru consolidation. To me they have to validate the debt, but because their Affadivit is incorrect and doesn't match the two statements they included in the Complaint validation has not been completed. How do I respond to their "Counterclaim" Dismissal? In my opinion I do not have a counterclaim, only a defense I do not owe them which I still stand by. There is a third party settlement that exists, which I stated in my Answer to Complaint, but I have not provided them with proof of it, because I don't want to pull out my hand too quick nor do I want to point out their doumentation is not correct and have them amend before trial. Please help

 

[army judge]

Is this a secured debt?

How much is alleged to be owing on this debt?

Why do you want to play this silly game?

You may have boxed yourself into a corner.

Have you investigated bankruptcy?

 

[fredrikklaw]

This sounds like a Motion for Summary Judgment!

Littlered-893:

First of all, there will be no "future" lawsuits brought by either party as to all claims, allegations, damages, and remedies accrued up to the time the action was commenced. That is because the rules of civil procedure require that all claims and counter claims be included or are considered waived. So, basically, a party cannot Split a Claim and should speak up or forever hold his peace (so to speak).

Also, once you followed the denial of the allegations contained in the complaint with what you correctly termed as "affirmative defenses," you in fact inserted a counterclaim which is what the plaintiff is trying to get rid of by his Motion to Dismiss pursuant to 12(b)(6). But reading the excerpts from plaintiff's motion, I do believe the plaintiff may have overstepped the permissible boundaries of a 12(b)(6) motion which should work to your advantage in one of two ways.

You see, it seems very much like the plaintiff has inserted extrinsic matters in the pleading in support of his 12(b)(6) motion, which should address only the issue of not stating a claim upon which relief can be given (#3)and I think you should call him on it. Here, the plaintiff has also argued two extra matters in (#1) "defendant's failure to allege any damages" and in (#2) "defendant's failure to provide a statement…pursuant to Rule 8…." The court can then do one of two things:

(1) Do not consider the extrinsic matters, so in effect striking (#1) and (#2) and proceeding with the remainder of the motion, or
(2) Consider the extrinsic matters, in which case the motion will automatically convert to a Motion for Summary Judgment.

The proper step here is for you to file and serve an Opposition to Plaintiff's Motion to Dismiss Pursuant to 12(b)(6), arguing that the plaintiff's insertion of extrinsic matters converts his 12(b)(6) motion into a motion for Summary Judgment. If the court does the conversion, you can then conduct discovery and present further evidence.

Now, Summary Judgment is a pretty detailed and cumbersome motion and it is very likely that rather than go through that lengthy legal process at this early stage of the litigation, the judge will opt to deny the plaintiff's motion instead until the case has had a chance to develop a bit further.

Last but not least, pay very close attention to time-allowed for responsive pleadings as they get shorter and shorter as the litigation goes on and you do not want to submit by default.

fredrikklaw

 

[littlered_893]

I really appreciate your answer, but some of it went over my head, so want to clarify. What happens if I don't reply?

From your answer above you suggest I file and serve an Opposition to Plaintiff's Motion to Dismiss Pursuant to 12(b)(6), arguing that the plaintiff's insertion of extrinsic matters converts his 12(b)(6) motion into a motion for Summary Judgment. Is this all the language I need? If not do you have an example?

Was I wrong for using this as an affirmative defense?
Thanks!

 

[fredrikklaw]

No response; judgment on merits!

A motion pursuant to 12(b)(6) is the Federal Rules of Civil Procedure's equivalent of Demurrer at state level and a failure to respond to such motions will not merely result in a default judgment which, can almost always be set aside by the aggrieved party even six months (and in some cases a year) after the entry of default. That is because a default judgment is not favored by courts and is considered a judgment not based on merits of the case and the law favors resolution of controversies on merits.

But if you do not respond to a 12(b)(6) Motion (or a Demurrer) and let it go unopposed, the motion will be granted and an adverse judgment will be entered against you WITH PREJUDICE, and such a judgment, even though by default, is considered a judgment reached on merits of the case. In other words, you will have no recourse later on by way of a motion to set aside judgment. So you simply have to respond or the case will conclude in plaintiff's favor after which he will probably come after you to collect.

And my apologies for not expanding on the responsive pleading that is the Defendant's Opposition to Plaintiff's Motion to Dismiss Pursuant to 12(b)(6). Alas no; this is not nowhere near the entire language you need for such a pleading; that is in fact only one third of the Pleading Title and Summary which appears on the first page of any legal document next to the box containing the plaintiffs and defendants.

An opposition response to such a motion will run anywhere between 8 to 14 pages at the very least and is made up of a summary of the action, statement of the facts, procedural history, memorandum of points and authority (MOPA), and a conclusion, with the Memorandum of Points and Authorities comprising your entire argument. I have included below a link that will take you to a prime example of an opposing response to a motion to dismiss.

And no, you were not wrong to insert the affirmative defenses per se; let's just say that it was not the right place to insert such arguments, but as it happens, I think that it has somewhat worked to your advantage in this case.

If you feel you there is not enough time in which to write, file and serve your response, call the opposing attorney for a stipulation to extend time to file your response and take that stipulation to the judge for approval and buy yourself some more time. But only make absolutely sure that any stipulation will be in writing.

http://www.ftc.gov/os/caselist/1023218/110408ivycapitalresp.pdf

fredrikklaw

 

[littlered_893]

Hi fredrikklaw

Thanks again for the detailed information. Can you private message me your contact information? I tried to send you a, but I have not posted enough yet to allow for private messaging.

Thanks!